Buskirk v. Joseph

• Decision Date: 27 October 1950
• Parties: Buskirk v. Joseph et al.
• Court: United States State Supreme Court — District of Kentucky

313 Ky. 773

Buskirk v. Joseph et al.

Court of Appeals of Kentucky.

October 27, 1950.

Suit by Hager Joseph and others against U.B. Buskirk and others to set aside an order of the Magoffin Circuit Court confirming a report of sale of land and to cancel deeds. From a judgment of the Circuit Court, Magoffin County, W.R. Prater, J., setting aside the order and cancelling the deeds, named defendant appealed, and plaintiff's cross-appealed from so much of the judgment as decreed

that named defendant should recover $300.00 from them. The Court of Appeals, Sims, C.J., held that action was a direct attack on the judgment ordering sale of certain property even though incidental relief of cancelling the deeds was asked for and granted and that plaintiffs were entitled to relief.

Judgment affirmed on appeal and reversed on the cross-appeal.

1. Removal of Cases — In suit by mortgagors to set aside order of court confirming report of sale, and to cancel deed of master commissioner to resident grantee, and deed from resident grantee to nonresident grantee, nonresident grantee was not entitled to have cause removed to federal court on ground that his codefendants were not necessary parties to the action and were made defendants to prevent action from being removed because of diversity of citizenship, in view of possibility that nonresident grantee, if he were a purchaser in good faith, might assert a claim against resident grantee to recover the purchase money paid.

2. Judgment — In suit by mortgagors to set aside order of court confirming report of sale, and to cancel certain deeds, although petition asked for incidental relief of cancellation after judgment confirming sale was set aside, suit was not a collateral attack but was a direct attack on judgment as allowed by statute. Civil Code of Practice, sec. 518.

3. Mortgages — Where mortgagees took default judgment against mortgagors and property was ordered sold to satisy lien, but master commissioner did not sell property until approximately a year later and during interim mortgagors had satisfied judgment and been assured by mortgagees and judge that matter was taken care of, subsequent sale of master commissioner, and court order confirming same would be set aside on equitable principles. Civil Code of Practice, sec. 518.

4. Mortgages — In suit by mortgagors to cancel a deed to land, evidence that purchaser did not see land before he obtained deed to it, was not certain of amount paid for it, never had title to property examined, and that his deed did not warrant title by grantor, justified chancellor's holding that purchaser was not an "innocent purchaser for value" of property.

5. Appeal and Error — Where appellees cross-appealed from portion judgment permitting appellant to recover $300 from them, but there was no issue in the pleadings as to such item, judgment would be reversed on the cross-appeal, since a judgment cannot properly adjudicate a matter not within the pleadings.

Clyde L. Miller for appellant.

Williams & Allen for appellees.

Before W.R. Prater, Judge.

CHIEF JUSTICE SIMS.

Affirming on appeal, reversing on cross-appeal.

This suit in equity was filed by appellees, Hager Joseph and wife against U.B. Buskirk, D.G. Sublett, R.L. Arnett, June Minix and Nannie Push under sec. 518 of the Civil Code of Practice to set aside an order of the Magoffin Circuit Court confirming a report of sale of 200 acres of land in Magoffin County, which was purchased by Sublett; and to cancel a deed Arnett, as master commissioner, made to Sublett; and to cancel a deed Sublett made conveying the land to Buskirk. The chancellor granted the relief sought and Buskirk appeals and appellees cross-appeal from so much of the judgment as decreed Buskirk should recover $300 from them.

Appellees have owned and resided on this 200 acre farm for more than thirty years. They executed a mortgage upon the property some time before 1938 in the sum of $85 to Nannie Push and June Minix, upon which they paid $16 on June 1, 1938. Subsequently, the mortgagees took a default judgment against appellees for the balance of $69 due on the debt, and the property was ordered sold to satisfy the lien. The judgment was taken in May 1941, but the master commissioner did not sell the property until April 1942, and during the interim appellees satisfied the judgment. Before the sale was made Hager Joseph accompanied by Nannie Push, one of the creditors and a plaintiff in the foreclosure action, went to Judge Chester Bach while he was presiding in the circuit court in which that action was pending, and Nannie Push told the Judge the debt had been paid in full and the judgment satisfied. To this Judge Bach replied, "All right, I will take care of it."

The mortgagors and mortgagees were inexperienced in legal matters and were of the impression that this settled the case and appellees did not know differently until in October 1945, when they leased their land for oil and gas and an investigation of the title revealed a judicial sale of this farm was had in 1942 and Sublett purchased it for $115. The property had been appraised for $800 and as it did not bring two-thirds of its appraised value, the debtors had the right of redemption, KRS 426.530, and the report of sale made by the master commissioner at the April term 1942 was not confirmed until the April term 1943. The day before the sale was confirmed and the deed ordered, the master commissioner conveyed the property to Sublett, who on that same day, in consideration of $300 conveyed it to Buskirk, a nonresident, who had never been in Magoffin County and had never seen the property. Several witnesses testifying for appellees stated the property was worth $6000 at the time it was sold and one of them, a banker, stated it was worth $10,000 at the time he gave his deposition in March 1948. The proof shows that Hager Joseph and his brother inherited the land from their father and Hager paid his brother $2000 for an undivided one-half interest in it years ago.

The petition in the instant case stated the facts set out above, which are substantiated by appellees' proof. It further averred Sublett and Buskirk knew such facts but colluded with each other to defraud the Josephs of their farm and to put the title in Buskirk, a nonresident, who pretended to be an innocent purchaser for value.

Buskirk, a resident of West Virginia, filed a petition in the Magoffin Circuit Court to remove the action to the federal court on the ground that his co-defendants were not necessary parties to the action and were made defendants to prevent the action being removed to the federal court because of diversity of citizenship. The chancellor refused to remove the case to the federal court. Buskirk's general demurrer to the petition of appellees was overruled and he and Sublett filed seperate answers denying collusion, and Buskirk affirmatively averred that he was an...